ljaz Ahmad Chaudhry, J.--Muhammad Riaz convict was convicted for an offence under Section 302(b), PPC as `Taz'ir' vide judgment dated 27.05.2002, handed down by the learned Sessions Judge, Mianwali, for committing `qatl-i-amd' of Shafa Ullah deceased and was sentenced to death with direction to pay a sum of Rs, 1,00,000/- to the heirs of the above-said deceased by way of compensation under Section 544-A, Cr.P.C. and in default of payment thereof to further undergo S.I. for six months. Muhammad Riaz convict has not challenged his conviction and sentence before this Court, however, Murder Reference No, 420 of 2002 has been sent by the learned trial Court under Section 374 Cr.P.C. seeking confirmation of the sentence of death passed by the learned trial Court against Muhammad Riaz convict, which has been heard by us alongwith Criminal Revision No, 645 of 2002 filed by Ghulam Rabbani complainant seeking enhancement of compensation amount awarded to Muhammad Riaz convict and both these matters are being disposed of together through the present consolidated judgment.
2. Precisely the facts of the prosecution case setup in the F.I.R. (Ex. PF) got lodged by Ghulam Rabbani complainant (PW-4) are that Shafa Ullah deceased was his real son. For a period of one year before Shafa Ullah deceased was serving as a driver with Ghulam Hassan Khan and Muhammad Riaz convict was also an employee with Ghulam Hassan Khan. On 8.1.2002, complainant alongwith Muhammad Asghar his son and Zafar Ullah (PW-5) came to Hassan Chowk to see Shafa Ullah deceased. After offering the Esha Prayer the complainant alongwith Shafa Ullah deceased, Muhammad Asghar and Muhammad Riaz convict, went to sleep in a room.
Zafar Ullah (PW-5) went to sleep in the next adjoining room. Tube light was on in the room. The complainant awoke at 5.00 a.m. in the morning to offer the prayer. He saw that Muhammad Riaz convict was standing near his own cot while armed with rifle 8 mm. He on seeing the complainant made a fire with his rifle at Shafa Ullah deceased his son which hit on the left side of his chest. Then he made second fire which hit on the right wrist of Shafa Ullah deceased. On the hue and cry of the complainant Muhammad Asghar son of the complainant and Zafar Ullah (PW-5) also awoke, who witnessed the occurrence. Muhammad Riaz convict went outside while running away. The complainant alongwith the PWs attended to Shafa Ullah deceased but he succumbed to his injuries.
3. The motive behind the occurrence was alleged to be that two weeks before an exchange of abuses took place between Shafa Ullah deceased and Muhammad Riaz convict. Shafa Ullah deceased had abused Muhammad Riaz convict. Due to this grudge, Muhammad Riaz convict had committed the murder of Shafa Ullah deceased.
4. The investigation of this case was conducted by Dost Muhammad, S.I. (PW-9) and during the investigation, dead body of Shafa Ullah deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under Sections 161 Cr.P.C. were recorded, the place of occurrence was inspected, blood stained earth was secured, rough site-plan of the place of occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy, the last worn clothes of the both the deceased were received, a formal site-plan of the place of occurrence was got prepared, the convict was arrested on 13.1.2002 who on 20.1.2002 led to the recovery of rifle 8MM (P-11) and after completion of the investigate lion report under Section 173 Cr.P.C. was submitted in the Court.
5. At the commencement of the trial, the learned trial Court after supplying copies of the documents required under Section 265-C Cr.P.C. to the convict framed the charge under Sections 302 PPC against him on 15.04.2002, to which he pleaded not guilty and claimed to be tried.
6. During the trial the prosecution produced as many as nine witnesses in support of its case. The ocular account of the incident in question was furnished by Ghulam Rabbani complainant (PW-4) and Zafar Ullah (PW-5), who also deposed about the motive. The medical evidence was provided by Dr. Muhammad Saqlain Shah, (PW-3), who on 9.1.2002 at about 1.00 p.m. had conducted the postmortem examination on the dead body of the deceased. PW-1 Muhammad Shafiq, Draftsman on the pointing out of the witnesses and on the instructions of the police prepared scaled site-plan while Dost Muhammad, S.I. (PW-9), had stated about the various steps taken by him during the investigation of this case. The other witnesses are of formal nature.
7. In his statement recorded under Section 342 Cr.P.C. Muhammad Riaz convict had denied and controverted the allegations levelled against him by the prosecution and professed his innocence.
However, to a question that "Why this case against you and why the PWs deposed against you?", Muhammad Riaz convict replied in the following terms:-- "I am a poor man. I joined the service of Ghulam Hassan two months prior to the present occurrence and. I was looking after the animals of Ghulam Hassan Khan. Shafa Ullah deceased was an old employee of Ghulam Hassan Khan and the deceased had access to their personal matters. I know nothing about the occurrence. I was apprehended on 9.1.2002 by Ghulam Hassan Khan and his son Ahmad Hassan Khan and sent for the relatives of the deceased and got me falsely involved in the case. The deceased was killed under some mysterious circumstances.
Ghulam Hassan Khan got me involved falsely to save his skin and the skin of his son and this was the reason that Ahmad Hassan Khan provided his licenced rifle to the police which was planted upon me. I had no grudge against the deceased. I am innocent."
However, neither he opted to make statement under Section 340(2) Cr.P.C. on oath, nor he produced any evidence in his defence.
8. Upon conclusion of the trial the learned trial Court, after finding the prosecution's case against the convict to have been proved beyond reasonable doubt, he was convicted and sentenced as mentioned and detailed above. Hence, both these matters before this Court.
9. The learned Deputy Prosecutor General has supported the impugned judgment of conviction and sentence and contended that the FIR was got registered with promptitude that presence of the eyewitnesses at the spot was quite natural as they had come to see the deceased on the night of occurrence; that the ocular account was fully corroborated by the recovery of rifle and report of Forensic Science Laboratory is positive and that the convict acted in a brutal manner, who has rightly been sentenced to death by the learned trial Court, which is liable to be confirmed by this Court. However, none appeared on behalf of the complainant in spite of that the name of the learned counsel who filed Criminal Revision 645 of 2002 is duly reflected in the cause list and even a chit in his name was sent in the Bar Room.
10.On the other hand, learned counsel appearing on behalf of Muhammad Riaz convict opposes the murder reference and contends that the eye-witnesses were residents of far off places and they were the chance witnesses who had not shown any specific reason for their being present at the spot at the time of occurrence; that the convict has been falsely involved in the case on the basis of suspicion; that recovery of weapon was shown to have been effected on the last date of physical remand while the empties were sent when the convict had already been arrested and the report of Forensic Science Laboratory cannot be relied upon; and that there were material contradictions in the statements of the eye-witnesses, who are not trustworthy and the prosecution having failed to prove its case the convict is liable to be acquitted.
11. We have heard the learned counsel for the parties and also perused the record with due care and caution.
12. In order to prove the ocular account the prosecution produced Ghulam Rabbani complainant (PW-4) who is father of Shafa Ullah deceased and according to the prosecution the incident had taken place at 5.00 a.m. while the matter was reported at Police Station at 6.15 a.m The other eye- witness is PW-5 Zafar Ullah who was Mamuzad of Ghulam Rabbani complainant (PW-4). Both the eye-witnesses were not residents of the same locality and were related inter se and with the deceased closely. It was admitted by Ghulam Rabbani complainant (PW-4) during the cross- examination that he was working as a Munshi at Chashma Barrage for the last about 10/15 years and his place of posting was at a distance of 15/16 miles from the place of occurrence. Similarly, Zafar Ullah (PW-5) was also a cultivator in village Samand Wala and according to Ghulam Rabbani complainant (PW-4), village Noranga was at a distance of about 20/22 miles towards north-west from the place of occurrence while village Samand Wala was at a distance of 17/18 miles towards north from the place of occurrence. So both the eyewitnesses were residents of more than 15/16 miles away from the place of incident and they were the chance witnesses, who were bound to give plausible explanation for being present at the spot. Both the eyewitnesses had not shown any specific reason for their being present at the spot at the time of incident and no material has been placed on the record or any plausible explanation was given by these witnesses that they were present at the time of incident at the spot alongwith the deceased. We have noticed that in their statements before the police and before the learned trial Court they and not mentioned any specific reason for going to the place of incident to meet Shafa Ullah deceased. It was also not believable that the accused/convict would choose the time to commit the murder of the deceased in the presence of his close relatives whereas both of them were servants of Haji Ghulam Hassan Khan, who used to reside there and the incident could have been committed by the convict in the absence of the eye-witnesses easily. Even otherwise, as per prosecution story on the night of incident the convict also slept in the same room where the deceased alongwith other PWs was sleeping but no untoward incident resulting into commission of the offence had taken place throughout the night and what had taken place in the early hours of the morning provoking the convict to commit this occurrence was not explained by the eye-witnesses.
13. We are not inclined to believe that the convict was waiting for arrival of the relatives of the deceased to commit his murder so that they would become witnesses against him. It is also not found correct that the FIR had been got registered with promptitude as the occurrence had allegedly taken place at about 5.00 a.m. while the postmortem examination was conducted at 1.00 p.m. and there is every possibility that the intervening period was consumed in concocting, a story and to await for the relatives of the deceased, who were made witnesses subsequently, otherwise, they have failed to establish their presence at the spot. Even otherwise, we find that their conduct at the time of incident was not normal as they had not tried to save the life of the deceased and they had also not tried to catch the convict. Thus we find that the ocular account was not trustworthy.
14. Haji Ghulam Hassan Khan and his son Ahmad Hassan Khan were not produced by the prosecution about the earlier incident if any such occurrence had taken place between the deceased and the convict which was the cause of the murder of the deceased according to the prosecution. We are of the view that motive was also not established as no untoward incident had taken place between both the convict and the deceased or the witnesses produced by the prosecution earlier in spite of that they used to reside at the same dera jointly being employed there.
15. As far as recovery evidence is concerned, it is found that although the empties according to the prosecution were recovered from the spot but in the inquest report (Ex. PE) in the relevant Column No, 23 it has not been shown that any empty was found at the spot near the dead body. Even otherwise, we are not inclined to accept the version that the weapon was got recovered by the convict from the given place of recovery as claimed by the prosecution. Even otherwise, the said recovery was shown to have been effected on the last day of physical remand of the convict while the empties were sent to the office of Forensic Science Laboratory on 13.1.2002, when the convict was already arrested. So the report of the Forensic Science Laboratory also cannot be used as a corroborative piece of evidence to the ocular account, which has already been disbelieved by us.
16. For what has been discussed above, we have come to an irresistible conclusion that the prosecution had not been able to prove the case against the convict beyond any shadow of doubt.
Although Muhammad Riaz convict has not filed any appeal, but as we have thrashed the evidence in the matter of Murder Reference and come to the aforesaid conclusion, the benefit thereof cannot be withheld to the convict by us being Court of law. Hence, the impugned judgment of conviction and sentence recorded by the learned trial Court against the convict is set aside and he is acquitted of the charge by extending him the benefit of doubt, who shall be released from jail forthwith, if not required in any other criminal case. Consequently, the death sentence awarded to Muhammad Riaz convict is not confirmed and Murder Reference No, 420 of 2002 is replied in the negative.
17. In view of the above, Criminal Revision No, 645 of 2002 seeking enhancement of compensation awarded to the convict by the learned trial Court has become infructuous, which is dismissed accordingly.